CHARITO PLANAS,
                Petitioner,

COMMISSION ON ELECTIONS, ET AL.,
                                            Respondents.

__________________________________
 

PABLO C. SANIDAD,
                   Petitioner,

COMMISSION ON ELECTIONS, ET AL.,
                                            Respondents.

__________________________________
 
 

GERARDO ROXAS, ETC., ET AL.,
                                       Petitioners,

COMMISSION ON ELECTIONS, ET AL.,
                                            Respondents.

__________________________________
 

EDDIE B. MONTECLARO,
                           Petitioner,

COMMISSION ON ELECTIONS, ET AL.,
                                           Respondents.

__________________________________
 

SEDFREY A. ORDOÑEZ, ET AL.,
                                     Petitioners,

NATIONAL TREASURER OF THE PHILIPPINES, ET AL.,
                                                                         Respondents.
 

____________________________________________
 

VIDAL TAN, ET AL.,
            Petitioners,

COMMISSION ON ELECTIONS, ET AL.,
                                           Respondents.
 

__________________________________________
 

JOSE W. DIOKNO, ET AL.,
                          Petitioners,

COMMISSION ON ELECTIONS,
                             Respondents.
 

________________________________________
 
 

JACINTO JIMENEZ,
                Petitioner,

COMMISSION ON ELECTIONS, ET AL.,
                                            Respondents.
 

________________________________________
 
 

RAUL M. GONZALES,
                     Petitioner,

HON. COMMISSION ON ELECTIONS, ET AL.,
                                                      Respondents.

________________________________________
 

ERNESTO HIDALGO,
                   Petitioner,

COMMISSION ON ELECTIONS, ET AL.,
                                            Respondents.
 
 

Soon after, or on December 7, 1972, Charito Planas filed with this Court, Case G.  R. No. L-35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress" and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections [Case G. R. No. L-35929]; on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General [Case G. R. No. L-35940], by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines [Case G. R. No. L-35941], and by Sedfrey A. Ordoñez, et al. against the National Treasurer and the Commission on Elections [Case G. R. No. L-35942]; on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing [Case G. R. No. L-35948], and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections [Case G. R. No. L-35953]; on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing [Case G. R. No. L-35961], and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General [Case G. R. No. L-35965]; and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General [Case G. R. No. L-35979].

In all these cases, except the last [G. R. No. L-35979], the respondents were required to file their answers "not later than 12: 00 [o'clock] noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972.  By agreement of the parties, the aforementioned last case - G. R. No. L-35979 -  was also heard jointly with the others on December 19, 1972.  At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the Proposed Constitution."

In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President  reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections  the Court deemed it more imperative to defer its final action on these cases.

In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was alleged in said motion, inter alia:

6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973];

7. That thereafter, it was later announced that "the Assemblies will be asked if they favor or oppose:

"[1] The New Society;

"[2] Reforms instituted under Martial Law;

"[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new date given following the postponement of the plebiscite from the original date of January 15 are February 19 and March 5);

"[4] The opening of the regular session slated on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]

"[1] Do you approve of the New Society?

"[2] Do you approve of the reform measures under martial law?

"[3] Do you think that Congress should meet again in regular session?

"[4] How soon would you like the plebiscite on the new Constitution to be held?" [Bulletin Today, January 5, 1973;

10.  That on January 10, 1973, it was reported that one more question would be added to the four (4) questions previously announced, and that the forms of the questions would be as follows:

"[1] Do you like the New Society?

"[2] Do you like the reforms under martial law?

"[3] Do you like Congress again to hold sessions?

"[4] Do you like the plebiscite to be held later?

"[5] Do you like the way President Marcos is running the affairs of the government?" [Bulletin Today, January 10, 1973; additional question emphasis.]

"[1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?

"[2] Do you approve of the new Constitution?

"[3] Do you want a plebiscite to be called to ratify the new Constitution?

"[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution ?

"[5] If the elections would not be held, when do you want the next elections to be called?

"[6] Do you want martial law to continue?" [Bulletin Today, January 11, 1973; emphasis supplied]

13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and which reads:
 

"COMMENTS ON

QUESTION NO. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly."

Attention is respectfully invited to the comments on "Question No. 3", which reads:

"QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.

This, we are afraid and, therefore, allege, is pregnant with ominous possibilities.

14. That in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to be asked to the Citizens Assemblies, namely:

"Do you approve of the New Constitution?"

in relation to the question following it:

"Do you still want a plebiscite to call to ratify the new Constitution?"

would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending;

17. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution;

18. That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such supposed expression of the will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified;

19. That, in such a situation, the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos, because then, the people and their officials will not know which Constitution is in force.

20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition;

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a Resolution requiring the respondents in said three [3] cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of LocaI Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion.

In support of this prayer, it was alleged:

3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the Department of Local Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion;

4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly insofar as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution because:

(a) The elections contemplated in the Constitution, Article XV, at which the proposed constitutional amendments are to be submitted for ratification, are elections at which only qualified and duly registered voters are permitted to vote, whereas, the so-called Citizens' Assemblies were participated in by persons 15 years of age and older, regardless of qualifications or lack thereof, as prescribed in the Election Code;

(b) Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by raising hands;

(c) The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no similar provisions to guide and regulate proceedings of the so-called Citizens' Assemblies;

(d) It is seriously to be doubted that, for lack of material time, more than a handful of the so-called Citizens' Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning:

"Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday [January 8, 1973] to thresh out the mechanics in the formation of the Citizens' Assemblies and the topics for discussion," [Bulletin Today, January 16, 1973].

5. That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because:

(a) The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction"

(b) In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or Proposed Constitution approved by the Constitutional Convention on November 30, 1972'; and finally,

(c) Petitioners prayed for such other reliefs which may be just and equitable. [p. 39, Petition].

"a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code." [Election Code of 1971, Sec. 3].

(a) After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos;

(b) Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decrees Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court.

  BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO. 1102   ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.  
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a pIebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one [14,976,561] members of all the Barangays [Citizens Assemblies] voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine [743,869] who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen [14,298,814] answered that there was no need for a plebiscite and that the vote of the Barangays [Citizens Assemblies] should be considered as a vote in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays [Citizens Assemblies] are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.

(Sgd.) FERDINAND E. MARCOS
President of the Philippines
By the President:
ALEJANDRO MELCHOR
Executive Secretary

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Member have preferred to merely concur in the opinion of one of our colleagues.

What follows is my own view on these cases.

The first question for Our determination is whether We have authority to pass upon the validity of Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said question is a political one. I am of the opinion  on which the Members of the Court are unanimous  that the contention of the Solicitor General is untenable and that the issue aforementioned is a justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of the Executive,[1] but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935 Constitution[2] which expressly provides for the authority of this Court to review cases involving said issue.

Petitioners in G. R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its authority in approving Sections 2, 3 [par. 2] and 12 of Article XVII of the Proposed Constitution. Regardless of the wisdom and moral aspects of the contested provisions of the Proposed Constitution, it is my considered view that the Convention was legally free to postulate any amendment it may deem fit to propose  save perhaps what is or may be inconsistent with what is now known, particularly in international law, as jus cogens,  not only because the Convention exercised sovereign powers delegated thereto by the people  although insofar only as the determination of the proposals to be made and formulated by said body is concerned  but, also, because said proposals cannot be valid as part of our Fundamental Law unless and until "approved by the majority of the votes cast at an election at which" " said proposals "are submitted to the people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.

As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the Filipino people [on January 15, 1973] for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at any time later, the proper parties may then file such action as the circumstances may justify.

With respect to the question whether or not martial law per se affects the validity of a submission to the people for ratification of specific proposals for amendment of the Constitution, I consider this matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the President of the Philippines. This question has not been explicitly raised, however, in any of the cases under consideration, said cases having been filed before the issuance of such Proclamation, although the petitioners in L-35948 maintain that the issue on the referral of the Proposed Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental Motion of January 15, 1973. At any rate, said question has not been adequately argued by the parties in any of these cases, and it would not be proper to resolve such a transcendental question without the most thorough discussion possible under the circumstances. In fairness to the petitioners in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of dismissing the case as moot and academic, said petitioners should be given a reasonable period of time within which to move in the premises.

Recapitulating the views expressed by the Members of the Court, the result is this:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that that issue involves question of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom for the purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question.

b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to and should be determined by the Court, and that the "purported ratification of the Proposed Constitution based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution," but that such unfortunate drawback notwithstanding, "considering all other related relevant circumstances, the new Constitution is legally recognizable and should be recognized as legitimately in force.

WHEREFORE, all of the aforementioned cases are hereby dismissed, without special pronouncement as to costs.

It is so ordered.

Makasiar, J., concur.
 
 

The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2), and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971 Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any similar decree, proclamation, order or instruction unconstitutional, null and void." Basically, although couched in different language, it is the same relief sought in the other petitions.

Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the interim National Assembly, which includes, among others, "those Delegates to the (1971) Constitutional Convention who have opted to serve therein by voting affirmatively for this Article." Section 3 (par. 2) provides that "All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid, and binding."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said plebiscite from being held that these petitions were filed.

The specific grounds alleged in the petition in G. R. No. L-35948 to support the relief prayed for which are fairly representative of the others, read as follows:

I. The President of the Philippines has no power to call a plebiscite for the ratification or rejection of the 1972 Draft; neither has he the power to appropriate funds for the holding of the said plebiscite.

II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation of power. And it contains provisions which were beyond the power of the convention to enact. All these have made the 1972 Draft unfit for "proper submission" to the people.

III. The period of time between November 30, 1972 when the 1972 Draft was approved, and January 15, 1973, the date the plebiscite will be held, is too inadequate for the people to be informed of the contents of the 1972 Draft, and to study and discuss them so that they could thereafter intelligently cast their vote.

In view of the foregoing developments which supervened after the petitions herein and the answers thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January 15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also premature. But of course whether the petition is moot or premature makes no material difference as far as these cases are concerned, since the announced ratification of the proposed Constitution by the Citizens Assemblies has made it unlikely that any plebiscite will be held.

With respect to ground No. II we are of the opinion that the question of whether or not the proposals referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to the people for ratification has likewise become moot because of the President's Proclamation No. 1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid it should be not as mere proposals by the Convention but already as provisions of the Constitution, and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral argument on his urgent motion for early decision to question the validity of Proclamation No. 1102. This question is not within the purview of the petition and involves issues which have neither been raised nor argued herein, having arisen in a new and different setting and frame of reference, and hence may only be ventilated, if at all, in an appropriate case or at least through appropriate pleadings so that the parties may be duly heard.

We, therefore, vote to dismiss the petitions.
 

The Solicitor General's Office on behalf of respondents manifested as of its last comment of January 16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No. 73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."

On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays [Citizens Assemblies][1] are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people."[2]

Under the circumstances of record from which it appears that no election [or plebiscite] for the purpose has been called and held,[3] it would be premature for now to hold that the averred ratification of the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV of the Constitution that "[S]uch amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification" or of Section 16 of Article XVII of the proposed Constitution itself that "[T]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave constitutional question in its two aspects (a) whether the Constitutional Convention may assume the power to call the plebiscite [a power historically exercised by Congress] and to appropriate funds therefor against the Constitutional mandate lodging such power in Congress;[4] and (b) whether the Constitutional Convention may delegate such assumed power to the President  absent any showing of willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g., Sections 2 and 15 of Article XVII [Transitory Provisions] providing for the delegates of said Convention to constitute the majority of an interim National Assembly and empowering such Assembly "upon special call by the interim Prime Minister, by a majority vote of all its members, (to) propose amendments to this Constitution (which) shall take effect when ratified in accordance with Article Sixteen hereof", which would appear to be in violation of the accepted principles governing constitutional conventions that they become functus officio upon completion of their function to formulate and adopt amendments to the Constitution[5] for the people's ratification or rejection in the manner ordained in the Constitution[6] since such convention controlled interim National Assembly may continue proposing Constitutional amendments by mere majority vote in contrast to the regular national assembly which would require "a vote of three-fourths of all its members" to propose such amendments.[7]
 

Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of the Constitutional Convention to propose amendments to the Constitution is its authority to order an election at which such amendments are to be submitted to the people for ratification and, within the narrow range implied as necessary for the business of submitting the amendments to the people, the capacity to appropriate money for the expenses necessary to make such submittal effective. Independently therefore of the question, whether or not the President may legislate during martial law, it was certainly within the authority of the President to issue such measures, acting as agent for and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and appropriate money for said purpose.

The opinion that the President, as agent of the Convention, could device other forms of election to determine the will of the majority of the people on the ratification of the proposed Constitution, establishes a principle that is, not entirely devoid of precedent. The present Constitution of the United States was ratified in a manner not in accord with the first Constitution of the United States, which was the Articles of Confederation. The violation was deliberate, but Madison, however defended the method provided for the adoption of the new Constitution by saying that it was a case "of absolute necessity" which forced the framers of the new Constitution to resort "to the great principle of self-preservation; to the transcendental law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." While I agree that this precedent is never one that would justify governmental organs in ignoring constitutional restraints, the fact is the people themselves had already acted by adopting the procedure devised in the expression of their sovereign will.

To the contention of one of the petitioners, that the draft of the Constitution contains provisions beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that there is nothing that can legally prevent a convention from actually revising the entire Constitution for, in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision.

I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant the presumption that the results of the plebiscite of ratification is not a genuine and free expression of the popular will.

It poses a question of fact which, in the absence of any judicially discoverable and manageable standards, or where the access to relevant information is insufficient to assure the correct determination of the issue, I do not feel that this Court is competent to act.

If the ratification of the new Constitution and the new government erected thereon, is not what it is represented to be, the expression of the will of the majority or the people are dissatisfied, they have ample remedy. The instrument itself provides amendment and change. For the only and proper way in which it should be remedied, is the people acting as a body politic. These questions relate to matters not to be settled on strict legal principles. For the new Constitution has been promulgated and great interests have already arisen under it. The political organ in the government has recognized it and has commenced the implementation of its provisions. Under such circumstances the Court should therefore refrain from precipitating impossible situations which might otherwise rip the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the historical facts that culminated in the national referendum. The people wanted a revolutionary change. They were aware of the manifold problems of the nation  its poverty, corruption, injustice, subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains of the commonweal may be conserved and further enlarged. In the ambience of such a historical setting, it would have been presumptuous to assume that the qualified voters in the reportedly more than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear. Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the people themselves.

In all other respects, the opinion of Justice Barredo, merits my concurrence.
 

My reasons are simple and need no elaborate and lengthy discussion.

1. In the first place, these cases have been moot and academic as the holding of the plebiscite scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated January 7, 1973. Consequently, there is nothing more to prohibit or restrain.

I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of any evidence to overthrow the veracity of the facts therein related, there being no case formally filed with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do so would be simply tiding rough shod over the well-beaten road of due process of law which basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume that what the proclamation says on its face is true and until overcome by satisfactory evidence, of which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be resolved without raising the legality of the Government under which we are now operating as of January 17, 1973. Hence We would be confronted with a political question which is beyond the jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the manner of its ratification has been innocuous. Having been invested with full force and effect by the approval of an overwhelming majority of the people, to mount an attack against it now would be nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique literary character and I prefer to take things in the light of the stark realities of the present. I have always adhered to the idea that the practical approach to any question yields the happiest solution, instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.
 

Now, as to the merits of the issues that would have called for resolution, were it not for the matter becoming moot and academic. While not squarely raised, the question of whether or not a constitutional convention could go on meeting with martial law in force has a prejudicial aspect. Following the ruling in Duncan v. Kahanamoku[1] that Legislature and Courts continue to function even under such period, being not merely cherished governmental institutions but indispensable to the operation of government, there is no doubt in my mind that the same principle should likewise apply to a constituent body. To the contention pressed by Senator Tanada as counsel in Tan v. Commission on Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed amendments if approved by the majority, is practically limitless.[2] In that sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec,[3] "whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution."[4] Once its work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence, the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose.[5] Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable.[6] If the appropriation were made in his capacity as agent of the Convention to assure that there be the submission to the people, then such an argument loses force. The Convention itself could have done so.[7] It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence. That brings me to the argument as to the absence of proper submission, developed with the customary learning and persuasiveness by Senators Tanada and Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections:[8] "A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention. We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and 3, not the authority of Congress to approve the same. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913."[9]

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for granting the petitions in view of what, for me, is the repugnancy between an election contemplated under Article XV of the Constitution in herein the voters can freely register their will, whether it be for approval or disapproval, and the existence of martial law, with its connotation that dissent may be fraught with unpleasant consequences. While it is to be admitted that the Administration has done its best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident to such a regime has been reduced to a minimum. I fail to see then the existence of that indispensable condition of freedom that would validate the ratification process as contemplated by the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are fundamental concepts of judicial review precludes it this state the expression of any opinion. It would, at the very least, be premature.[10]
 

As of today, two matters present themselves for Our immediate resolution, namely: [1] the petitions in all of these cases praying for a writ of prohibition against the implementation of Presidential Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being January 15, 1973; and [2] the supplemental petition, with prayer for the issuance of a writ of preliminary injunction or a restraining order, in G. R. No. L-35948 to enjoin whatever ratification of the said Constitution would be proposed by the Citizens Assemblies, established under Presidential Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to such ratification, should it be proclaimed, which, by the way, everybody knows was already done at about 11:00 o'clock A.M. on January 17, 1973.

As to No. [1], I vote to dismiss the original petitions in all these cases for the simple reason that the alleged grounds thereof are either untenable or have been premature, if not somehow moot and academic, at least, meanwhile that the plebiscite had not been reset.[1]

(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v. Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this position.

(b) On the other hand, I am of the considered view that it is not within the competence of this Court to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the Convention. The Convention was called for the purpose of proposing amendments to the Constitution, and like any Constitutional Convention it was completely and absolutely free to make any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires proposals advanced by petitioners is to me without sufficient legal basis.

(c) Much less can I accept the view that the Convention's task was limited to proposing specific amendments to become either as new parts of the existing Constitution or as replacements of corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in this regard, I feel safe in saying that when the people elected the delegates to the Convention and when the delegates themselves were campaigning such limitation of the scope of their function and objective was not in their minds. Withal, considering the number and nature of the proposals already being publicly discussed before and after said election, to follow petitioners' suggestion would have produced confusion and probably insurmountable difficulties even in the framing and phrasing alone of the amendments so that they may easily and clearly jibe with the other parts of the existing Constitution.

(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No. 73, I maintain that independently of the issue of whether or not the President may legislate during martial law relative to matters not connected with the requirements of suppressing the armed insurgency and the maintenance of peace and order, it was within the prerogative of the President to issue said decree, considering that in doing so he merely acted as agent for and on behalf of the Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972, delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules requiring the laying down of standards in the delegation of legislative functions binding Congress do not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of legislative authority than Congress in matters related to the accomplishment of its objectives, it follows that Presidential Decree No. 73 was validly issued.

(e) All the other objections to said decree were rendered premature, if not somehow moot and academic for the time being, because under General Order No. 20, dated January 7, 1973, the President postponed the plebiscite until further notice. Such being the case, nobody could positively say that the President would not allow Congress to pass a plebiscite law or that he would not lift martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that are supposed to be ratified together with the Constitution itself would not be published, for the proper information of all concerned before the next date to be fixed for the plebiscite. In other words, no one could say that appropriate steps would not be taken to meet the objections alleged in the petitions before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue the factual setting whereof may still be materially altered.

(f) On whether or not the holding of the plebiscite during martial law would materially affect proper submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents that this is a question of fact which cannot be pre-determined and that it would, therefore, be the burden of the petitioners to show by evidence that such freedom had been actually and substantially impaired. When one recalls that measures were taken by the President precisely to provide the widest opportunity for free debate and voting, consistent with the nature and purpose of the plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him, which measures he had to withdraw only when in his judgment he deemed it to be so required by public safety, it does not seem altogether logical to assume that the existence of martial law per se deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use an apt expression, does not carry with it necessarily all the implications thereof as these are known in other lands and in the recorded precedents.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact, the answering of the questions and the canvassing and reporting of the referendum in the Assemblies throughout the country were done exactly in the manner and form that they should have been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted, which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many places, judged on the basis of the requirements of the prevailing election laws.

On the other hand, in spite of these considerations, I do not find myself in a position to deny the factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval of the proposed Constitution and would consider the same as already ratified by them. I understand that this number was determined on the basis of sworn reports of the respective heads of the Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading to the issuance of said proclamation may be deemed already cured by the apparent will of the people